Petition to review a modification by the Commissioner of the State of Connecticut Department of Environmental Protection of a National Pollution Discharge Elimination System permit which had been issued by that Commissioner pursuant to § 402 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342 (Supp. IV). Petition for review dismissed.
Smith, Hays and Meskill, Circuit Judges.
The Mianus River Preservation Committee and several named individuals who own property along the banks of the Mianus River in Greenwich, Connecticut petition this Court for review of a modification of a National Pollution Discharge Elimination System ("NPDES") permit made by the respondent Commissioner of the State of Connecticut Department of Environmental Protection ("DEP"). The permit had originally been issued by DEP to the Greenwich Water Company ("Water Company") under § 402 of the Federal Water Pollution Control Act Amendments of 1972 ("FWPCA").*fn1 Petitioners alleged jurisdiction in this Court pursuant to § 509(b)(1)(F) of the FWPCA.*fn2 For the reasons set forth below, we dismiss the petition for lack of jurisdiction in this Court.
The underlying controversy in this case stems from the fact that the Water Company, which maintains a water filtration plant in which it chemically treats water taken from the reservoir created by a dam on the Mianus River, has for many years discharged chemically treated flocculants into the river below the dam. This practice has apparently resulted in deposits of these flocculants up to five feet in depth in some places in the river below the dam. Consequently, in February, 1972, DEP issued order No. 979, mandating that the Water Company complete facilities for treatment and thereby the reduction of the flocculant discharges into the river by June 30, 1973. In May, 1972, DEP extended the compliance date until November 30, 1973. Schedules were set for the submission and approval of various engineering proposals and for the start of construction. Although plans for the discharge treatment facilities which petitioners seem to favor were eventually approved by DEP, for numerous reasons, none the least of which was the Water Company's apparently precarious financial position, construction on those facilities has yet to begin.
Shortly after DEP first extended the facility's completion date, Congress enacted the 1972 Amendments to the FWPCA.*fn3 Those amendments created, among other things, the NPDES, a system which seeks gradual reduction and, hopefully, elimination of pollutants through the requirement of restrictive permits to those who currently discharge such wastes.*fn4 Section 402(a)(1) of FWPCA placed the initial responsibility for issuing the NPDES permits with the Administrator of the Environmental Protection Agency ("Administrator"). Sections 402(a)(5) and 402(b) of the FWPCA,*fn5 however, operate to transfer that responsibility to the respective states, upon each State's request, if the Administrator determines essentially that the requesting State's permit program will meet the requirements of the FWPCA. Connecticut's program was approved and authorized by the Administrator on September 26, 1973.
Consequently, the original DEP order No. 979 was apparently transformed by DEP into a draft NPDES Permit No. CT 0001325 on April 1, 1974.*fn6 That draft permit continued the requirement that the approved treatment facilities be placed in operation. As can be seen, however, the original compliance date contemplated in order No. 979 had already passed. Subsequently, on March 10, 1975, DEP modified the draft NPDES permit, and issued a formal NPDES permit establishing alternative requirements, namely, that the treatment facilities be completed by July 31, 1977 or that, by the same date, the Water Company connect its discharges to a municipal sanitary sewer system proposed for construction in the area by the Town of Greenwich.*fn7
The petitioners objected generally to DEP that the permit as issued was inadequate, that the delays and failure to remedy the discharges in accordance with original order No. 979 were inexplicable, and that the sewer connection alternative did not provide a realistic means for eliminating the discharges since there was no guarantee that such a sewer would ever be constructed by the Town of Greenwich. DEP then conducted a hearing on the permit, at which hearing complaints were aired and more information was gathered. As a result of that hearing, DEP, pursuant to its authority under Chapter 474a of the Connecticut General Statutes,*fn8 officially modified,*fn9 the permit on August 26, 1975. Much to the dismay of the petitioners, the modification, rather than requiring an earlier compliance date, extended that date and removed entirely the provisions for the construction of treatment facilities. The modified permit requires that the Water Company connect its discharges to the Greenwich sanitary sewer by July 31, 1978, thereby completely eliminating any discharge into the Mianus River.
The petitioners challenged the validity of the NPDES permit, as modified, by seeking review in this Court on November 24, 1975 pursuant to § 509 of the FWPCA. They assert that the permit is invalid for two reasons: first, that since the compliance date is July 31, 1978, the permit does not comply with the FWPCA's directive that a permit require the application of the "best practicable control technology" toward the reduction of polluting discharges by July 1, 1977,*fn10 and second, that since the Greenwich sanitary sewer does not now exist in the vicinity of the filtration plant, and since only the Town of Greenwich can extend the sewer to that area, the permit essentially requires compliance with an act which is not wholly within the control of the permittee Water Company.
Although the respondent Commissioner of DEP has defended the validity of the modified permit on the merits, he has also moved to dismiss the petition for review, and has been joined in such motion by the Administrator, on the jurisdictional ground that § 509(b)(1)(F) of FWPCA*fn11 provides for review in the appropriate Court of Appeals of only the " Administrator's action. . . in issuing or denying any permit under section " of that Act, not the issuing or denying of such a permit by a State. (Emphasis supplied.) We agree with the respondents and dismiss the petition without reaching the merits.
It is rather clear that jurisdiction in the Court of Appeals to review the issuance, denial or modification of an NPDES permit, if it exists at all, is to be found in § 509 of FWPCA. Cf. Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 288 (2d Cir. 1976). The plain words of that section, however, clearly specify review of only the "Administrator's action," the term "Administrator" being defined in § 101(d)*fn12 as the Administrator of the Environmental Protection Agency. Section 509 leaves unmentioned the review status of permits issued or denied by one other than the Administrator. Because that section explicitly mentions only action of the Administrator and because, as will be discussed infra, the legislative history of § 402 clearly shows that Congress intended that the States have a great deal of autonomy in administering their own permit programs, we see no reason to extend the explicit jurisdictional grant to "action" of anyone other than the Administrator. Where, as here, the NPDES permit was undeniably issued and modified by a State agency pursuant to its own authority under § 402, one is hard pressed without more to find such "Administrator's action."
In order to fit this case within § 509's "Administrator's action" requirement, the petitioners have advanced two theories: (1) that DEP, in acting upon NPDES permits, serves as the Administrator's agent, thereby rendering the State's action an action of the Administrator through a delegation of authority, and alternatively, (2) that since the Administrator has the authority to reject or "veto" any particular application made by a polluter to a State for an NPDES permit, his failure to veto the application is his "action" sufficient for the jurisdictional purposes of § 509. We find neither theory persuasive.
The delegation of authority theory, although perhaps appealing at first glance, fails upon a more thorough examination of the structure of the NPDES permit programs created under § 402. Subsection (a)*fn13 of § 402 places with the Administrator the initial authority for administering the permit program under NPDES, but further requires, during an initial transitional period, that he " shall authorize a State, which he determines has the capability of administering a permit program which will carry out the objective of this chapter, to issue permits for discharges into the navigable waters within the jurisdiction of such State." (Emphasis supplied.) Subsection (b)*fn14 of § 402 sets forth more specifically the procedures and requirements which a State program must meet in order to qualify for that subsection's directive that the "Administrator shall approve " such a State's application to administer its own more permanent permit program. (Emphasis supplied.) Finally, subsection (c)*fn15 of § 402 directs that the federal permit issuing program shall be suspended in such States where a valid State program continues to operate. Such a system for the mandatory approval of a conforming State program and the consequent suspension of the federal program creates a separate and independent State authority to administer the NPDES pollution controls, in keeping with the stated Congressional purpose "to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution. . . ." FWPCA § 101(b).*fn16 Congress has not created a discretionary power in the Administrator to delegate his own authority to States with sufficient programs; it has clearly directed that the States are to administer the permit system if the Administrator determines that applying States have sufficient programs. Moreover, the Administrator's determination that a State program does or does not meet the statutory criteria for approval is reviewable in the appropriate Court of Appeals. FWPCA § 509(b)(1)(D).*fn17
(9) To insure that any industrial user of any publicly owned treatment works will comply with sections 1284(b), ...